Shivers v. Cellulose, CIVIL ACTION 15-0429-WS-M

• Decision Date: 29 November 2016
• Docket Number: CIVIL ACTION 15-0429-WS-M
• Parties: CHRISTOPHER SHIVERS, Plaintiff, v. ALABAMA RIVER CELLULOSE, GP, Defendant.
• Court: U.S. District Court — Southern District of Alabama

CHRISTOPHER SHIVERS, Plaintiff, v. ALABAMA RIVER CELLULOSE, GP, Defendant.

CIVIL ACTION 15-0429-WS-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

November 29, 2016

ORDER

This matter comes before the Court on Defendant's Motion for Summary Judgment (doc. 38). The court-ordered briefing schedule having expired with neither response nor acknowledgment from plaintiff, the Motion is now ripe for disposition.¹

I. Nature of the Case.

Plaintiff, Christopher Shivers, who is proceeding pro se, is a former employee of defendant, Alabama River Cellulose, GP ("Alabama River"). In his Complaint, Shivers allegesthat Alabama River discriminated against him on the basis of his race (black) in terminating his employment in October 2014. On that theory, Shivers has brought race discrimination claims against Alabama River pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981.²

II. Background Facts.³

Defendant, Alabama River Cellulose GP, operates a mill in Perdue Hill, Alabama, that manufactures specialty fluff and market pulp used in products such as diapers and hygiene products. (Blaylock Decl. (doc. 38, Exh. 1), ¶¶ 1-2.) Shivers was employed continuously at the mill from 1995 until October 2014. (Shivers Dep. (doc. 38, Exh. 2), at 33.) At all relevant times, Shivers worked in the mill's power and recovery department as a recovery boiler operator. (Id. at 34-36.) Of some significance, Shivers received a disciplinary suspension from Alabama River in February 2014 after leaving a mandatory HAZMAT training session to rest in his personal automobile without clocking out. (Wiggins Decl. (doc. 38, Exh. 3), ¶ 6.) In conjunction with that disciplinary suspension, Alabama River admonished Shivers that his employment could be terminated if further issues arose. (Id.)⁴

In July 2014, Alabama River hired a white employee named Chris Whitfield. (Martin Decl. (doc. 38, Exh. 4), ¶ 3.) Whitfield had previously been employed as a police officer in Grove Hill, Alabama. (Shivers Dep., at 89.) Whitfield was assigned to the mill's power and recovery department, just as Shivers was. On September 12, 2014, Whitfield contacted an Alabama River human resources representative named Deaundra Martin to report disparaging treatment by several African-American co-workers. (Martin Decl., ¶ 4.) Specifically, Whitfield notified Martin that a black employee named Stephanie Dale had refused to train him and, after bringing up the recent high-profile police shooting in Ferguson, Missouri, had started calling him by the derogatory nickname "killer." (Id.)⁵ Whitfield further complained to Martin that twoother black co-workers, Shivers and James Hurst, had asked him what he thought about the Ferguson shooting, and then had begun calling him "killer" too. (Id.) Also on September 12, Whitfield submitted a written complaint to Alabama River confirming his report to Martin. (Id., ¶ 5.)⁶

In response to Whitfield's internal complaint, Martin and Human Resources Manager Anita Wiggins promptly launched an investigation, pursuant to which they interviewed eight employees, including Shivers. (Id., ¶ 6; Wiggins Decl. (doc. 38, Exh. 3), ¶ 3.) At that time, Shivers admitted that he had used the nickname "killer" for Whitfield on one occasion, but had then dropped it, and acknowledged that "with everything that was going on in St. Louis, he could see why it was offensive." (Martin Decl., ¶ 7.)⁷

During the course of the Alabama River investigation, Whitfield notified Wiggins that he felt threatened by Shivers for having complained to the company about his work environment. (Wiggins Decl., ¶ 4.) To support these new allegations, Whitfield furnished Wiggins with recordings of conversations between Shivers and Whitfield. (Id.) Shivers concedes the accuracy and authenticity of those recordings. (Shivers Dep., at 109.) Included in those recordings was a conversation in which Whitfield asked how he could straighten things out (referencing his internal complaint and the ongoing HR investigation), and Shivers responded, "dude, at this point, you can't straighten it out." (Id. at 110.) Shivers also told Whitfield, "it's just like interrogation, you've got your rats out there." (Id. at 115.) In his deposition, Shivers indicated that his reference to "rats" meant "someone as going back, telling someone in authority what'shappening in their circle." (Id.) Shivers characterized his recorded discussions with Whitfield as follows: "I was trying to refer to the fact that he didn't want to be on this job and [have] everybody mad with him." (Id. at 116.)

At the conclusion of their investigation, both Wiggins and Martin (the two Alabama River human resources representatives) concurred that Shivers' employment should be terminated. (Martin Decl., ¶ 8; Wiggins Decl., ¶ 5.) In particular, Wiggins (the HR Manager) concluded that Shivers' conduct - both in using the derogatory term "killer" in reference to Whitfield and in his subsequent intimidating comments directed at Whitfield for having complained - contravened Alabama River's expectation that its employees must foster a respectful and inclusive workplace. (Wiggins Decl., ¶ 6.)⁸ Finding that Shivers was one of several employees who had created a hostile environment for Whitfield, Wiggins also considered Shivers' recent disciplinary history, including his February 2014 suspension in which he had been warned of termination if there were further issues. (Id.)

After developing her recommendations that Shivers and three other employees be terminated for their roles in creating the hostile environment of which Whitfield had complained, Wiggins consulted with a host of Alabama River officials, including Terry Reed (Vice President of Human Resources), Tommy Blaylock (Operations Excellence Leader), Tim McIlwain (highest management at the mill), Bridget Hawkins (EEO Coordinator) and Steve Sides (manager over the power and recovery department). (Wiggins Decl., ¶ 7.) All of them concurred with the recommendations. (Id.) On or about October 3, 2014, Alabama River announced its disciplinary decisions in response to the Whitfield complaints. Pursuant to those decisions, Stephanie Dale (the employee who had come up with the nickname "killer" and had refused to train Whitfield), Shivers, and Billy Cosson (a white crew leader who oversaw the affected employees, and had failed to exert proper leadership) were all fired. (Blaylock Decl., ¶¶ 7-8.) A fourth employee, James Hurst (who is black) was "disciplined short of termination" because his involvement was less than Dale's and (unlike Shivers) he had no prior disciplinary record. (Id.)

III. Summary Judgment Standard.

Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11^th Cir. 1992) (internal citations and quotations omitted). "Summary judgment is justified only for those cases devoid of any need for factual determinations." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11^th Cir. 1987) (citation omitted).

The Eleventh Circuit has expressly rejected the notion that summary judgment should seldom be used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11^th Cir. 2004). Rather, "the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale." Id. at 1086 (citation omitted); see also Williamson v. Clarke County Dep't of Human Resources, 834 F. Supp.2d 1310, 1318 (S.D. Ala. 2011) (recognizing and applying rule that summary judgment standard is applied equally in employment discrimination cases as in other kinds of federal actions).

As mentioned, Shivers elected not to respond to Alabama River's Motion for Summary Judgment. Applicable law is clear that "[s]ummary judgment is not automatically granted by virtue of a non-movant's silence." Williams v. Aircraft Workers Worldwide, Inc., 832 F. Supp.2d1347, 1352 (S.D. Ala. 2011).⁹ If a nonmovant fails to respond to a summary judgment motion, then the movant's assertions of facts supported by record evidence may be deemed "undisputed for purposes of the motion." Rule 56(e)(2), Fed.R.Civ.P. In that scenario, the court may "grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it." Rule 56(e)(3). In performing that analysis, a court is not obligated to read minds and ordinarily will not construct arguments or theories that a party has failed to raise.¹⁰ As such, Shivers' failure to proffer argument, evidence or authority in response to defendant's Rule 56 Motion is at his peril. Such an omission imparts no burden on this...